{ "id": 8519966, "name": "UNION GROVE MILLING AND MANUFACTURING COMPANY, Plaintiff v. JOHN A. FAW, MARY EDNA GAITHER FAW (now Mary Edna Gaither); N.C. DAIRY HERD IMPROVEMENT ASSOC., INC., DALE PIERCE, ROBERT LANEY, NCNB NATIONAL BANK OF NORTH CAROLINA, STEVE ADAMS, BENNY FOSTER and BARTLETT MILLING COMPANY, Defendants", "name_abbreviation": "Union Grove Milling & Manufacturing Co. v. Faw", "decision_date": "1991-06-04", "docket_number": "No. 9023SC972", "first_page": "166", "last_page": "169", "citations": [ { "type": "official", "cite": "103 N.C. App. 166" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "20 ALR4th 211", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "353 S.E.2d 225", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "318 N.C. 505", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4737417, 4738602, 4733422, 4740368, 4733653 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/318/0505-05", "/nc/318/0505-04", "/nc/318/0505-02", "/nc/318/0505-03", "/nc/318/0505-01" ] }, { "cite": "335 S.E.2d 321", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "314 N.C. 662", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4694784, 4690857, 4693328, 4693755, 4696541 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/314/0662-04", "/nc/314/0662-02", "/nc/314/0662-03", "/nc/314/0662-01", "/nc/314/0662-05" ] }, { "cite": "328 S.E.2d 840", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1985, "pin_cites": [ { "page": "841" }, { "page": "842" }, { "page": "841" }, { "page": "842" } ], "opinion_index": 0 }, { "cite": "74 N.C. App. 550", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525345 ], "year": 1985, "pin_cites": [ { "page": "552" } ], "opinion_index": 0, "case_paths": [ "/nc-app/74/0550-01" ] }, { "cite": "279 S.E.2d 566", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "569" } ], "opinion_index": 0 }, { "cite": "303 N.C. 514", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574113 ], "year": 1981, "pin_cites": [ { "page": "519-20" } ], "opinion_index": 0, "case_paths": [ "/nc/303/0514-01" ] }, { "cite": "178 S.E.2d 101", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "10 N.C. App. 231", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552852 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc-app/10/0231-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 45-21.32", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1984, "pin_cites": [ { "page": "(c)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 426, "char_count": 7528, "ocr_confidence": 0.75, "pagerank": { "raw": 2.222140623609758e-07, "percentile": 0.7777393585494753 }, "sha256": "cac935aaf8c391fce2710a84f20d424d0dbb2de1300fe9c3ffc2bbac812fe7e7", "simhash": "1:c340537e3c25a8cb", "word_count": 1211 }, "last_updated": "2023-07-14T17:27:13.805826+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges COZORT and ORR concur." ], "parties": [ "UNION GROVE MILLING AND MANUFACTURING COMPANY, Plaintiff v. JOHN A. FAW, MARY EDNA GAITHER FAW (now Mary Edna Gaither); N.C. DAIRY HERD IMPROVEMENT ASSOC., INC., DALE PIERCE, ROBERT LANEY, NCNB NATIONAL BANK OF NORTH CAROLINA, STEVE ADAMS, BENNY FOSTER and BARTLETT MILLING COMPANY, Defendants" ], "opinions": [ { "text": "WYNN, Judge.\nThis appeal involves the effect of a judgment lien against one spouse on marital property which, by virtue of a divorce decree, has been converted into property held as a tenancy in common and which, by virtue of a subsequent equitable distribution award, has been awarded to the non-debtor spouse. The specific issue here is whether the non-debtor spouse takes the property subject to the lien of judgment.\nPlaintiff brought this action as a special proceeding in Wilkes County Superior Court alleging that as a judgment creditor of defendant John A. Faw, it was entitled to recover one-half of the surplus proceeds remaining after a foreclosure sale of former marital property. In addition to defendant John Faw, plaintiff named as defendants the appellant, Mary Edna Gaither Faw (defendant John Faw\u2019s former wife, now Mary Edna Gaither), and several other persons or entities that had judgments against the defendant John Faw, individually (each of these judgments was docketed after plaintiff\u2019s judgment). Because issues of fact were raised by the responsive pleadings, the proceeding was transferred to the civil issue docket pursuant to the provisions of N.C. Gen. Stat. \u00a7 45-21.32(c) (1984). The record reveals the following additional facts.\nDuring their marriage, the Faws acquired a tract of land in Readies River Township, Wilkes County, as tenants by the en-tireties (hereinafter referred to as \u201cthe property\u201d). As security for the payment of certain monies, the Faws executed and delivered a deed of trust covering the property to the Federal Land Bank.\nOn 4 February 1988, plaintiff obtained a $34,981.09 judgment in the Iredell County Superior Court against Mr. Faw, individually. Subsequently, on 15 February 1988, plaintiff docketed the judgment in the office of the Clerk of Superior Court for Wilkes County.\nIn December 1988, the Federal Land Bank, through its substitute trustee, instituted foreclosure proceedings on the property after the Faws had defaulted on the underlying obligation secured by the deed of trust. Prior to the sale of the property, the Faws became divorced by judgment filed January 3, 1989; and, in June 1989, appellant (Mrs. Faw) was awarded the entire ownership of the property as part of an equitable distribution award.\nFollowing the Faws\u2019 divorce and the division of the marital property, the substitute trustee, pursuant to an authorization from the clerk of court, conducted a sale of the property. After the foreclosure sale and subsequent extinction of the underlying debts and fees, there remained surplus proceeds in the amount of $71,375.54. Faced with the claim of the plaintiff/judgment creditor, the substitute trustee paid one-half of the proceeds to appellant and deposited the remaining one-half with the clerk of court pending a determination as to its ownership.\nThereafter, plaintiff instituted this special proceeding asserting that its judgment lien against Mr. Faw\u2019s interest in the subject property was superior in time to any other and that it was therefore entitled to the remaining one-half of the surplus proceeds. From the trial court\u2019s grant of summary judgment in favor of the plaintiff, Mrs. Faw appeals.\nI\nIt is well established in North Carolina that summary judgment is properly granted where there are no genuine issues of material fact to be decided and the movant is entitled to judgment as a matter of law. Lee v. Shor, 10 N.C. App. 231, 178 S.E.2d 101 (1970). The appellant does not contend that there were genuine issues of material fact to be decided by the trial court; rather, she contends that plaintiff was not entitled to judgment as a matter of law. We disagree.\nWhen property is held by married persons as tenants by the entireties, a lien of judgment effective against only one spouse does not attach to the property until the property is converted into another form of estate. In re Foreclosure of Deed of Trust, 303 N.C. 514, 519-20, 279 S.E.2d 566, 569 (1981). One such type of conversion occurs upon divorce where property held as a tenancy by the entirety is converted into property held as a tenancy in common, and each former spouse thereafter holds an undivided one-half interest in the subject property. Branch Banking and Trust Co. v. Wright, 74 N.C. App. 550, 552, 328 S.E.2d 840, 841, disc. review allowed, 314 N.C. 662, 335 S.E.2d 321, appeal withdrawn, 318 N.C. 505, 353 S.E.2d 225 (1985). Moreover, upon divorce, each former spouse\u2019s undivided one-half interest becomes subject to the claims of his or her individual creditors. Id. at 553, 328 S.E.2d at 842.\nIn Wright, supra, this court stated that, \u201cthe estate of a tenancy in common of necessity intervenes between absolute divorce and award of title pursuant to equitable distribution when property was held by the entireties.\u201d Id. Once it is established that there has been a tenancy in common, the rule is that the grantee of a tenant in common can take only that tenant\u2019s share and step into that tenant\u2019s shoes. Id. at 552, 328 S.E.2d at 841.\nIn the instant case, the divorce between Mr. and Mrs. Faw on 3 January 1989 converted their tenancy by the entirety ownership in the subject property into tenancy in common ownership and the plaintiff\u2019s lien of judgment immediately attached to Mr. Faw\u2019s undivided one-half interest. Thus, upon being awarded the subject property in the equitable distribution judgment, appellant took title in fee simple absolute subject to the plaintiff\u2019s judgment lien on defendant John Faw\u2019s one-half undivided interest. See id. at 553, 328 S.E.2d at 842.\nII\nThe appellant has failed to address her second assignment of error in her brief; accordingly, it is deemed abandoned. N.C. R. App. P. 28(b)(5).\nIll\nFor the reasons set forth above, the judgment entered below is\nAffirmed.\nJudges COZORT and ORR concur.", "type": "majority", "author": "WYNN, Judge." } ], "attorneys": [ "Eisele & Ashburn, P.A., by Douglas G. Eisele, for plaintiff-appellee.", "Hall and Brooks, by John E. Hall, for defendant-appellant." ], "corrections": "", "head_matter": "UNION GROVE MILLING AND MANUFACTURING COMPANY, Plaintiff v. JOHN A. FAW, MARY EDNA GAITHER FAW (now Mary Edna Gaither); N.C. DAIRY HERD IMPROVEMENT ASSOC., INC., DALE PIERCE, ROBERT LANEY, NCNB NATIONAL BANK OF NORTH CAROLINA, STEVE ADAMS, BENNY FOSTER and BARTLETT MILLING COMPANY, Defendants\nNo. 9023SC972\n(Filed 4 June 1991)\nDivorce and Separation \u00a7 143 (NCI4th)\u2014 equitable distribution \u2014 division of entireties property \u2014judgment lien against husband \u2014 property subject to lien\nThe trial court correctly granted summary judgment against defendant wife where defendant Mary Gaither and her ex-husband, John Faw, had purchased land as entireties property; plaintiff obtained a judgment against Faw; defendants Gaither and Faw divorced and she was awarded the entire ownership of the property in an equitable distribution award; the property was sold in foreclosure; and there were surplus proceeds claimed in part by plaintiff in satisfaction of its judgment lien. The divorce converted the entirety into tenancy in common and plaintiffs lien immediately attached to the ex-husband\u2019s undivided one-half interest. Defendant Gaither took title in fee simple absolute subject to plaintiff\u2019s judgment lien on defendant John Faw\u2019s one-half undivided interest.\nAm Jur 2d, Husband and Wife \u00a7 74.\nSpouse\u2019s liability, after divorce, for community debt con- < tracted by other spouse during marriage. 20 ALR4th 211.\nAppeal by defendant Mary Edna Gaither from judgment entered 15 June 1990 in WILKES County Superior Court by Judge Thomas W. Ross. Heard in the Court of Appeals 7 May 1991.\nEisele & Ashburn, P.A., by Douglas G. Eisele, for plaintiff-appellee.\nHall and Brooks, by John E. Hall, for defendant-appellant." }, "file_name": "0166-01", "first_page_order": 196, "last_page_order": 199 }